What
Mark Levin says in “The Liberty Amendments” in support of
an Article V convention is not true.[1]

On one
side of this controversy are those who want to restore our Constitution
by requiring federal and State officials to obey the Constitution we have;
or by electing ones who will. We show that the Oath of
Office at Art. VI, last clause, requires federal[2]
and state officials to support the Constitution. This requires
them to refuse to submit to - to nullify - acts of the federal
government which violate the Constitution. This is how they “support”
the Constitution!

We note
that the Oath of Office requires obedience to the Constitution alone.
The Oath does not require obedience to persons, to any agency of the federal
government, or to any federal court.

We understand
that resistance to tyranny is a natural right – and it is
a duty.

We have
read original writings of our Framers and know what our Framers
actually told the States to do when the federal government violates the
Constitution: Nullification of the unlawful act is among the
first of the recommended remedies–not one of which is “amendment
of the Constitution.”[3]

It is
already proved in “James
Madison Rebukes Nullification Deniers” that our Framers endorsed
nullification by States of unconstitutional acts of the federal government.
Thomas Jefferson and James Madison summed it up as follows:

“…when
powers are assumed which have not been delegated, a nullification
of the act”[4]is “the
natural right, which all admit to be a remedy against in supportable
oppression…”[5]

The
claims of the nullification deniers have been proven to be false. To persist
in those claims - or to do as Levin seems to do and ignore the remedy
of nullification - is intellectually and morally indefensible. So
why don’t they apologize to the public and recant their errors?

Instead,
they continue to tell us that what we need is a “convention of the
States” (which Levin and his mentors insist is provided by Article
V of the Constitution) to propose amendments to the Constitution,
and that this is the only way out.

Yes,
they tell us, the only way to deal with a federal government which consistently
ignores and tramples over the Constitution is …. to amend the
Constitution!

Do you
see how silly that is?

Levin’s
Amendments

Levin
starts his
book by saying how bad things are and how the federal government has trampled
and mangled the Constitution. Those pages are true. And they
serve the purpose of making readers believe that Levin is “on our
side.” And because of that, many are induced to lay aside their
critical thinking skills and accept on trust what Levin tells them. That
is a deadly mistake.

Levin’s
amendments actually gut our Constitution. Most increase
the powers of the federal government by making lawful what is now unconstitutional
because it is not an “enumerated
power.” Others put a band-aid on a problem without solving the
problem. The amendments pertaining to “overrides” undermine
the Constitution as the Objective Standard of what is lawful and what
is not – and substitute majority vote therefore.[6]

A
Defective Constitution? Or a Disobedient Federal Government?

We must
distinguish between defects within a Constitution, and a government’s
refusal to obey the Constitution to which it is subject. These
are different problems calling for different remedies.

There
were defects in the Constitution produced by the Federal Convention of
1787, such as provisions permitting slavery. Provision for amendment must
be made to repair such defects.[7]

But
our problem now is a disobedient federal government. That calls for different
remedies – and our Framers spelled them out.[3]

It
is idiotic to assert that you can rein in a federal government which ignores
the Constitution by amending the Constitution! Yet, that
is “The Levin Plan.”

Now
let us read Article:

What
Article V Really Says

“The
Congress, whenever two thirds of both Houses shall deem it
necessary, shall propose Amendments to this Constitution,
or, on the Application of the Legislatures of two thirds of the several
States, shall call a Convention for proposing Amendments,
which, in either Case, shall be valid to all Intents and Purposes, as
Part of this Constitution, when ratified by the Legislatures of three
fourths of the several States, or by Conventions in three fourths thereof,
as the one or the other Mode of Ratification may be proposed by the
Congress…” [boldface mine]

Note
that Congress “calls” the Convention. The States don’t
“call” it – all they can do is apply to Congress for
Congress to call it.

•
On September 10, Madison remarked on the vagueness of the term, “call
a Convention for the purpose”: How was a Convention to
be formed? By what rule decide? What the force of its acts?
• On September 15, Madison commented on this
again, and said that difficulties might arise as to the form, the quorum,
etc., which in constitutional regulations ought to be avoided when possible.

But
since Congress “calls” it, Congress has the power to
appoint whomsoever they will as delegates;[9]and nothing
in the Constitution says they can’t do this.

Now
note that Art. V provides for two conventions:

•
The first is the one called by Congress to propose amendments. • After amendments are proposed, Art. V empowers
Congress to select the mode of ratification: Shall the State Legislatures
be the body to ratify or reject? Or shall each State convene a convention
for the purposes or ratifying or rejecting the proposed amendments?

The
only convention Art. V authorizes States to convene is one within their
respective borders to ratify or reject an amendment proposed by Congress
or by the convention Congress called.

What
Levin Claims Article V Says

As you
see, Art. V makes no provision for a “state convention process”
where the States control the convention.

Yet
Levin makes the bizarre claims (cp 16-17) that Art. V authorizes
this “state convention process”; and that the convention called
by Congress pursuant to Art. V is really:

•
A “creature …of the state legislatures”; • That during ratification of our Constitution,
the Founders always talked about conventions for proposing amendments
as representing the States; and• That the state legislatures determine the method
for selection of their delegates; and the subject matter of the convention.

Does
Levin cite any authority for these claims? Words of our Framers, perhaps?

No!
He cites an article written by former law professor, Robert G. Natelson,
who Levin says is an “expert” on this “state convention
process” (p16, notes 28 & 29).

•
Natelson announces that he will no longer call what he wants a “constitutional
convention.” Henceforth, he will call it a “convention for
proposing amendments,” an “Article V Convention,”
an “amendments convention” or a “convention of the
states.”[10]• Natelson doesn’t cite any authority from
our Framers for the claims Levin regurgitates in his book. Instead,
Natelson cites other law review articles; and• Natelson claims it was “custom”
at the time of our Founding for States to have all these powers in conventions.

Custom?

Natelson’s
article is no authority at all. And even if he had proven that the “custom”
at the time of our Framing was for States to have all these powers in
conventions [someone really should have told James Madison about this
“custom”]; what is there to make the Congress of today follow
this 18th century “custom” when
Congress“calls” the convention under Art. V?

Levin
also says he knows Congress’ role in the “state application
process” is minimal and ministerial because:

•
The Framers and ratifiers adopted this “state convention process”
for the purpose of establishing an alternative to the congressionally
initiated amendment process; and • Alexander Hamilton said so in Federalist Paper
No. 85.

Here,
Levin commits the logical fallacy of “circular
reasoning”: We know, Levin argues, that Congress’ role
in the state application process is “minimal and ministerial”
because the Framers adopted this as an alternative to the method where
Congress proposes the amendments directly. Do you see?

Levin
next claims that in Federalist No. 85, Hamilton said, respecting an Art.
V convention, that Congress has “no option,” “will be
obliged,” and that “nothing in this particular is
left to the discretion of that body” (p 16-17).

Levin
misrepresents what Hamilton says. In Federalist
No. 85, Hamilton merely says that Congress must call a convention
when two-thirds of the States apply for it:

“…
By the fifth article of the plan, the Congress will be obliged …
on the application of the legislatures of two thirds of the States …
to call a convention for proposing amendments … The words of this
article are peremptory. The Congress "shall call a convention."
Nothing in this particular is left to the discretion of that body. …”

Levin
wrongly extends Congress’ lack of discretion on the issue of “to
call or not to call” to what follows the “call”:
How the convention is to be formed, the appointment of delegates, the
other questions raised by Madison on September 10 & 15, 1787, and
Eagle Forum’s Twenty Questions.

I have
never seen any of the Framers say that Congress has no power over what
follows Congress’ “call”; and Levin doesn’t
produce evidence that any of them ever did.

Levin
misrepresents what happened at the Federal Convention of 1787.

This
4 page chart lays out what really happened at that Convention respecting
Article V.

To introduce
his discussion of that Convention, Levin makes the following fanciful
claims:

“The
fact is that Article V expressly grants state legislatures significant
authority to re balance the constitutional structure for the purpose
of restoring our founding principles should the federal government shed
its limitations, abandon its original purpose, and grow too powerful…”
(p12-13)

Of course,
Article V says no such thing!

Levin
then quotes Edmund Randolph & George Mason, delegates to the Convention,
as support for his claims respecting the purpose of Art. V.

Mr.
Randolph & Col. Mason wanted a method of amendment Congress had nothing
to do with. This became an issue at the Convention; Randolph
& Mason held the minority view.

On September
15, 1787, Randolph & Mason said they would not sign the Constitution
unless Art. V were amended to require another general convention to approve
amendments proposed by what they called “state conventions.”

So they
moved that the following be added to Art. V:

“that
amendments to the plan [Constitution] might be offered by the State
conventions, which should be submitted to, and finally decided on by,
another general convention.”

This
was voted on and all the States answered, “No.”

So Randolph
& Mason - on whom Levin relies to support his fanciful claim that
the purpose of Art. V is for the States to hold conventions
to amend the Constitution when the federal government gets out of line
- didn’t sign the Constitution because Art. V didn’t
provide for the “state conventions” and the “general
convention” they demanded; and Congress retained its major role
in the amendment process.

Do
you see? Levin and his mentors are trying to resurrect Randolph’s
& Mason’s plan of “state conventions to propose amendments”
which was REJECTED by the Federal Convention of 1787!

Our
Framers’ Concerns about “Conventions”

Now
let us examine the “convention for proposing amendments” which
Congress calls pursuant to Art. V; the “runaway”
the Federal Convention of 1787 turned into, and “general conventions.”

We saw
that James Madison raised concerns on September
10 & 15, 1787, about Art. V conventions called by Congress,
because of questions respecting how was a Convention to be formed,
by what rule, & the procedures of such conventions.

Yet
Levin claims that in Federalist No. 43, Madison shows he considered an
Art. V convention as prudent a method of amendment as having Congress
propose the amendments (p 15).

In his
letter to Turberville, Madison speaks, with reference to modes of originating
amendments, of both a “general convention” and an “Article
V Convention,” on the one hand; and, on the other hand, “the
origination of amendments in Congress.”

Madison
advises that amendments be originated in Congress - not in an Art. V Convention,
for the various reasons set forth in his letter; and that:

“2.
A [“general”] Convention cannot be called without the unanimous
consent of the parties who are to be bound by it, if first principles
are to be recurred to; or without the previous application of - of the
State legislatures, if the forms of the Constitution [Art. V] are to
be pursued. The difficulties in either of these cases must evidently
be much greater than will attend the origination of amendments in Congress,
which may be done at the instance of a single State Legislature, or
even without a single instruction on the subject…”
[boldface mine]

Do you
see? Madison advises that when States want amendments, they instruct their
Congressional delegation to pursue it. This is the best
way for the States to “originate amendments”!

That
is the mode Madison strongly recommended; that is the
mode we have followed. On May
5, 1789, Rep. Bland (pages 258-261) introduced into Congress the petition
from the State of Virginia for an Art. V Convention to propose amendments.
But on
June 8, 1789, Madison (pages 448-460) introduced 12 proposed amendments
for Congress to propose to the State Legislatures. And
on September
24, 1789, the House & Senate having agreed on the wording of the
proposed 12 amendments; the House requested the President to transmit
them to the States for ratification.

If we
cannot elect to Congress people who will follow the instructions of their
State Legislatures & constituents and propose those amendments which
actually need to be made; how can we trust Congress to “call”
a convention?

And
as to another“general”
or “runaway” convention, perish the thought!:

On September
15,1787, in response to Randolph’s & Mason’s demands
for a “general convention” to decide on amendments,
Mr. Pinckney pointed out that nothing but confusion and contrariety will
spring from calling forth the deliberations and amendments of the different
States, on the subject of government at large. States will never agree
in their plans; and the deputies to a second convention,
coming together under the discordant impressions of their constituents,
will never agree. “Conventions are serious things, and ought not
to be repeated.”

“3…
an election into it would be courted by the most violent partisans
on both sides; it … would be the very focus of that flame which
has already too much heated men of all parties; would no doubt contain
individuals of insidious views, who under the mask
of seeking alterations popular in some parts but inadmissible in other
parts of the Union might have a dangerous opportunity of sapping
the very foundations of the fabric. … it seems scarcely
to be presumable that the deliberations of the body could be conducted
in harmony, or terminate in the general good. Having
witnessed the difficulties and dangers experienced by the first
Convention, which assembled under every propitious circumstance,
I should tremble for the result of a Second, meeting in the
present temper of America…” [boldface mine]

Do we
have “violent partizans,” “individuals of insidious
views,” and any who would exploit an opportunity
to sap “the very foundations of the fabric” today?
Yes, we do. They are in Congress, the executive branch, the federal Courts,
“conservative” circles – and they are invading our Country
at a furious rate. And what now is the “present temper of America”?

Why
a “Runaway” Article V Convention is a Real Possibility and
a Grave Danger.

“Resolved
that in the opinion of Congress it is expedient that on the
second Monday in May next a Convention of delegates who shall
have been appointed by the several states be held at Philadelphia for
the sole and express purpose of revising the Articles of Confederation
and reporting to Congress and the several legislatures such alterations
and provisions there in as shall when agreed to in Congress and confirmed
by the states render the federal constitution adequate to the exigencies
of Government & the preservation of the Union.” [boldface
mine]

So!
The Convention of 1787 was called by the Continental Congress for the
“sole and express purpose” of proposing revisions to the Articles
of Confederation.

But
the delegates ignored these limitations and wrote anew Constitution.[12]

As to
delegates, the Continental Congress expressly directed the States
to appoint the delegates.

But
there is no requirement in Art. V of our Constitution that States
be permitted to appoint delegates; and no “custom” from the
era of the Continental Congress can bind the Congress of today.

So if
Congress of today were to call an Art. V convention, Congress would most
likely get delegates who would do what Congress wants.

And
will Congress appoint Islamists as delegates? La Raza Mexicans? Other
special interest groups? How can Congress be prevented from appointing
whomsoever they will?

And
if the delegates duly appointed by Congress, and acting under the Authority
of Congress, come up with a new Constitution, will the new Constitution
outlaw Christianity? (Obama is outlawing it in the military, and Congress
isn’t doing a thing about it). Will it institute Sharia? Will it
disarm the American People? Will it follow the UN Model where “rights”
are privileges granted and withdrawn by the State? Will it outlaw private
property?

And
this new Constitution will have its own mode of ratification. This new
mode of ratification can be whatever the delegates want – a majority
vote in Congress, perhaps?

On page
15, Levin commits a
formal fallacy (an argument defective as to form) when he attempts
to prove that an Art. V convention can’t possibly turn into a “runaway.”
Here is the form of his argument:

1.
He was originally skeptical of “the state convention process”
because it could turn into a “runaway.” 2. Art. V says a proposed amendment
has no effect unless ratified by ¾ of the States.3. Therefore, the “state convention process”
can’t result in a “hijack of the Constitution” [“runaway”].

His
conclusion (3) is a form of non sequitur – it doesn’t follow
from the premises (1 & 2). And our concern is not with amendments
– those are subject to approval by three-fourths of the States.
Our concern is that the convention will “runaway” and write
a new Constitution with a new mode of ratification which does not require
approval by three-fourths of the States. Do you see?

Conclusion

Few
of us can name even 5 of the enumerated powers of Congress and 4 of the
enumerated powers of the President. Why? Because we never bothered to
learn our Constitution. Alexander Hamilton expected THE PEOPLE to be “the
natural guardians of the Constitution.” But you can’t
“guard” the Constitution if you don’t trouble yourself
to learn it.

Since
we never bothered to learn the Constitution, we elected politicians who
also hadn’t bothered to learn it. So they ignored the Constitution
when they assumed office.

This
is why, after more than 100 years of electing politicians who ignore the
Constitution, we are now under tyranny and headed for disaster.

Do we
now want a way out which allows us to avoid confronting our own personal
failures as Guardians of the Constitution? When charlatans who “sound
good” offer us a scapegoat, do we jump on it? Do we chant, “The
Constitution is broken! Fix the Constitution!” And shall we pretend
that we too know all about how to amend a Constitution most of us never
bothered to read?

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Our
Constitution depended on our knowing our Constitution and in electing
representatives who would obey it - and getting rid of them when they
didn’t.

“….
But I go on this great republican principle, that the people will have
virtue and intelligence to select men of virtue and wisdom. Is there
no virtue among us? If there be not, we are in a wretched situation.
No theoretical checks—no form of government can render us secure.
To suppose that any form of government will secure liberty or happiness
without any virtue in the people, is a chimerical idea. If there be
sufficient virtue and intelligence in the community, it will be exercised
in the selection of these men. So that we do not depend on their virtue,
or put confidence in our rulers, but in the people who are to choose
them.”

We are
in a “wretched situation” because we lost our virtue. Renounce
handouts and pride in pretended “knowingness.” Learn the enumerated
powers of Congress and the President. This
chart will get you started. Learn about nullification.
Form delegations and go to your State Legislators, educate them and demand
they start nullifying unconstitutional acts of the federal government.
States
should nullify obamacare! If Legislators aren’t willing to renounce
federal funding, recall or defeat them!

Endnotes:

1.
We must stop believing whatever we are told. We must demand proof
by original source documents, and think for ourselves.
2.
The President’s Oath is set forth at Art. II, §1, last clause.3.
These are among the remedies our Framers advised when the federal government
usurps power:

“…
In the first instance, the success of the usurpation will depend on
the executive and judiciary departments, which are to expound and give
effect to the legislative acts; and in the last resort a remedy must
be obtained from the people who can, by the election of more faithful
representatives, annul the acts of the usurpers…”

But
we keep reelecting the same sorry people because we know their names
and they are in our party.

“If
the representatives of the people betray their constituents, there is
then no resource left but in the exertion of that original right
of self-defense which is paramount to all positive forms of government,
and which against the usurpations of the national rulers, may be exerted
with infinitely better prospect of success …” [italics mine]

“…The
obstacles to usurpation and the facilities of resistance increase with
the increased extent of the state, provided the citizens understand
their rights and are disposed to defend them…”

“It
may safely be received as an axiom …that the State governments
will … afford complete security against invasions of the public
liberty by the national authority…. The legislatures … can
at once adopt a regular plan of opposition…”

“…When
will the time arrive that the federal government can raise and maintain
an army capable of erecting a despotism over the great body of the people
… who are in a situation, through the medium of their State governments,
to take measures for their own defense...”

7.
Alexander Hamilton said on Sep.
10, 1787 that an easy mode should be established for fixing defects
which will probably appear in the new system ... the National Legislature
will be the first to perceive, and will be most sensible to, the necessity
of amendments…

8.
What happened at the Federal Convention of 1787 respecting Art. V is laid
out in this
4 page chart.9.
“Citizens for Self-Governance,” headed
by the Michael
Farris who is pushing the “parental rights amendment, represents
that the “Convention of the States” will soon:

thereby
making the gullible believe that they can be a “player” in
this “Convention of the States.”

10.
Phyllis Schlafly,
Kelleigh Nelson,
Henry Lamb
and others have done such a magnificent job of warning The People of the
dangers of a constitutional convention, that many now understand that
such is likely to result in anew Constitution - with its own method of
ratification - being forced on us.

So!
Proponents now cal lit by another name: “Convention of the States”
or “state convention process.” Is the purpose of the name
change to deceive you?To make you think it is something “different”
from the Art. V convention Congress calls?

“8…That
useful alterations will be suggested by experience, could not but be foreseen.
It was requisite, therefore, that a mode for introducing them should be
provided. The mode preferred by the convention seems to be stamped with
every mark of propriety. It guards equally against that extreme facility,
which would render the Constitution too mutable; and that extreme difficulty,
which might perpetuate its discovered faults. It, moreover, equally enables
the general and the State governments to originate the amendment of errors,
as they may be pointed out by the experience on one side, or on the other…”

12.
We were fortunate (except for slavery) with the Constitution of 1787,
even though the Federal Convention was a “runaway”. Look who
was there!: George Washington, James Madison, Alexander Hamilton, and
Benjamin Franklin; and they weren’t drowned out by subversives.
They would be today.

Publius Huldah
is a retired attorney who now lives in Tennessee. Before getting a
law degree, she got a degree in philosophy where she specialized in
political philosophy and epistemology (theories of knowledge). She
now writes extensively on the U.S. Constitution, using the Federalist
Papers to prove its original meaning and intent. She also shows how
federal judges and politicians have ignored Our Constitution and replaced
it with their personal opinions and beliefs.h